Media Bureau Rejects Latina Move To Delay Incentive Auction

The FCC Media Bureau rejected a move by Latina Broadcasters to keep the license of its WDYB Daytona Beach, Florida, eligible for sale in the TV incentive auction. The station had been listed as included in the auction, but the FCC decided Latina missed the 2012 deadline to file for Class A status, making it ineligible for the auction (see 1602120065). Latina filed for stay of the Feb. 12 order on its Class A status and of the auction itself. The bureau rejected both. Feb. 19, Latina sought review of the Feb. 12 order in the U.S. Court of Appeals for the D.C. Circuit. “Latina has failed to demonstrate that it is likely to succeed on the merits” in its appeal, the bureau said in its order. “Latina is unlikely to succeed on its claim that it was deprived of due process.” Latina is also unlikely to win on its claim of equitable estoppel, the bureau said. “While Latina cites several eligibility notices as affirming that WDYB-CD would be protected in the repacking process and eligible for auction participation, these notices emphasized that they were provisional and were not intended to decide eligibility issues.” Latina hasn't demonstrated it will suffer irreparable injury absent a grant of the stay petition, the bureau said. “If Latina were to prevail on the merits of its claims, appropriate relief would be available at a later date.” In the meantime, Latina can continue to operate as a Class A station. It wouldn't serve the public interest to delay the auction until after Latina’s appeal is addressed by the court, the bureau said. The FCC has “devoted considerable time and resources since the enactment of the Spectrum Act to preparing for the incentive auction -- an unprecedented proceeding involving numerous complex and highly technical issues, representing the culmination of four years of work by the Commission and dozens of members of its staff, with significant ramifications for the nation’s economy and consumers,” the bureau said. “The beginning of the auction is now only five weeks away. A delay would disserve both consumers and eligible entities who have developed business plans based on the current schedule, including securing financing and deferring other business plans.” Meanwhile, Class A broadcasters Videohouse, Fifth Street Enterprises and WMTM filed a brief at the D.C. Circuit on the FCC recon order excluding them from the incentive auction. The D.C. Circuit has agreed to hear the case on an expedited basis (see 1602230077). “The Commission’s line-drawing exercise in determining which Class A eligible [low-power] TV stations would be eligible for the reverse auction and entitled to discretionary protection has been marked by arbitrary and capricious action,” the broadcasters said. The FCC decided to tie eligibility to whether a Class A-eligible LPTV station had filed Form 302-CA by Feb. 22, 2012, they argued. “That was not a known ‘deadline’ until it was imposed more than 27 months later on June 2, 2014, which, of course, makes it no deadline at all,” the stations told the court. “Even assuming that imposing a retroactive deadline were legitimate, the FCC’s actions were still arbitrary and capricious,” they said. “This is because the FCC violated a bedrock rule of administrative law by subjecting similarly situated entities to disparate treatment.”